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Appealing the Eastwood Mileground Siting Case

July 29, 2011 — newcommunityschool

THE WV SUPREME COURT HAS AN OBLIGATION TO PROTECT THE STUDENTS WHO WOULD ATTEND EASTWOOD ELEMENTARY

The Dominion Post article today on the lawsuit to block the siting of Eastwood Elementary on the Mileground has some mistakes that can be readily cleared up.

For example, this statement is false:

“The official notice of appeal – provided by Christini – lists the state BOE, Mon County BOE, SBA, and Mon County Schools Superintendent Frank Devono as defendants.”

It does no such thing. The “Notice of Appeal” lists the above four parties on page 1 section 1 as the parties in the Circuit Court case, but not in the Supreme Court case (the appeal). On page 1, section 4 the “Notice of Appeal” lists only state BOE and SBA as “Respondents” – “all parties against whom the [Supreme Court] appeal is taken.”

Thus, the lawsuit (the appeal) to the Supreme Court drops two of the four respondents (defendants) from the lawsuit in Circuit Court. It drops the county respondents, making the appeal only of the ruling in regard to the state respondents. It is the state (particularly the SBA) that has given and is giving final and ongoing approval for all siting, site preparation, and school construction at the Mileground site.

Thus, in its recent “Scheduling Order,” the Supreme Court names the case (the appeal) after the petitioner and the state parties, with no mention of the county parties, since they are not part of the appeal:

Tony Christini, Petitioner

vs.) No. 11-1060

The Board of Education of West Virginia,
West Virginia School Building Authority,
Respondents

The County BOE and the county superintendent are not part of the appeal because the county issues and the county role made the case cumbersome and unfocused. The state continues to be the fundamental defendant in the lawsuit in the ongoing effort to block the Mileground site. [Update: That said, Mon Schools has filed a brief in the appeal, and the Petitioner has requested that the Supreme Court grant all the relief the Petitioner requested in the Circuit Court petition, including actions that involve claims against Mon Schools and its superintendent.]

As stated in the “Notice of Appeal” the attorney for the state respondents in the Supreme Court appeal remains Kelli Talbott, Deputy Attorney General of WV.

Another problem in the Dominion Post article is the following statement:

“Christini…maintains that the proposed site’s proximity to the “traffic vortex” of W.Va. 705 and Mileground Road exposes children to exhaust and harmful chemicals from vehicles, putting the defendants in violation of State Board Policy 6200: Chapter 2, section 2.06.”

Vehicle exhaust pollution is mainly a student health issue, while Policy 6200 is explicitly a student “safety” mandate. Thus, the lawsuit argues that WV student health Code is violated due to proximity to vehicle exhaust, while arguing that the violation of Policy 6200 is due to the unsafe features of the traffic vortex, specifically: 1) heavy-traveled roads, 2) congestion, 3) entrapment, and 4) arterial highways (which pose more grave dangers than smaller roads).

All four of these unsafe traffic and highway features are specifically listed, verbatim, in Policy 6200 banning school sites near any such features, let alone adjacent to such features or thoroughly engulfed by them, as is the Mileground site.

While vehicle exhaust pollution can possibly be construed to fall under the purview of Policy 6200 as a safety danger, since safety and health can be said to overlap, vehicle exhaust is not specifically listed in the Policy and is more of a health danger. The potential “harmful chemicals” that are not vehicle exhaust would come from, say, a gas station that is designed to go in adjacent to the site (or from many other types of potential dangerous development in that commercial and industrial area). The threat of gas storage and such chemical exposure is explicitly covered by Policy 6200 in its various provisions, as opposed to vehicle exhaust. (The health dangers of near proximity to vehicle exhaust, causing heart and lung damage, asthma, cancer, etc, especially in young children, is a whole other area of negligence, and is more readily covered under WV student health Codes, which are also part of the lawsuit.)

The safety provisions and site prohibitions explicitly detailed in Policy 6200 are obviously designed to protect children from high risk traffic crash dangers, on accident-prone roads. And indeed the 705/Mileground intersection is one of the most crash-prone intersections in the entire region, shown by last summer’s study by the Dominion Post of police records. The Mileground school site is in a vortex of blaring sirens and vehicle smashups.

If an Eastwood student traveling in a bus or in a parent’s car gets injured, seriously injured, or worse, in a wreck there by the Mileground school site, then the officials involved, both county and state, should stand trial on both criminal and civil liability grounds for siting a new school in direct violation of the mandatory state student safety Policy 6200 202.06, which explicitly prohibits such siting.

The criminal and civil liability costs could be enormous and properly so. The grounds for negligence are such, in light of the explicit mandatory state policy, that homicide charges could and should be brought against county and state school officials if there would be an Eastwood student fatality in that traffic vortex.

So it is that a favorable Supreme Court ruling on the appeal to block the Mileground site would not only properly protect the schoolchildren, it would ironically protect the school officials from future prosecution for their own failure to do so, from their failure to abide by the mandatory student safety and health mandates and provisions of state Policy and state Code.

Below is an “extra sheet” filed with the “Notice of Appeal” that shows how the Eastwood Mileground siting problem is related to a very similar problem with Kenna Elementary in Jackson County: